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ELCDismissedEldoret High Court Misc Application No. 295 of 2005 (Notice of Motion dated 28th June 2025)· [2026] KEELC 1105 (KLR)

Republic v Minister for Lands and Housing & another; Kibor (Interested Party); Koilege (Ex parte Applicant) (Miscellaneous Civil Application E005 of 2025) [2026] KEELC 1105 (KLR)

Environment and Land Court
26 February 2026
2,743 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling on a preliminary objection in a first-instance application before the Environment and Land Court at Busia. The ex parte applicant, William Kimutai Kipkoech, legal representative of the deceased original applicant Kipkore Koilege, sought by notice of motion dated 28th June 2025 substitution of the deceased applicant, leave to file an appeal out of time against the judgment of Ibrahim Mohamed J delivered on 13th October 2012, and stay of execution of the resulting decree concerning land parcel No. 1422 Sangurur. The interested party objected that the application was res judicata a 2021 application dismissed by E.K Ogolla J, that the suit had abated under Order 24 of the Civil Procedure Rules following the deceased's death in 2016, that the applicant lacked locus standi, and that the firm of M/s Nyachiro Nyagaka & Company Advocates was not properly on record. Relying on Mukisa Biscuits, the applicant countered that the objections raised disputed facts requiring evidence. The court held that all the grounds raised mixed questions of law and fact: the previous application and ruling were not before it to enable a res judicata inquiry; the suit had ceased to exist upon the 2012 judgment, leaving only execution or incidental proceedings, and the application related to the right of appeal rather than the abated suit; the grant of letters of administration ad litem conferred locus standi; and post-judgment representation by an advocate of choice is recognized in law. The preliminary objection was dismissed with costs to the ex parte applicant, leaving the substantive motion pending.

Key legal issues

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01

Whether the preliminary objection meets the threshold in Mukisa Biscuits

Holding

It does not; the grounds raise mixed questions of law and fact requiring evidence

Reasoning

The court found that to determine res judicata, the court would need to review the previous application and ruling which were not placed before it. The question of abatement and legal representation also required investigation of facts on record. Such matters cannot be determined on a preliminary objection, which must rest on pure law on admitted facts.

p. 5
02

Whether the suit abated and the application is a nullity

Holding

The suit had been determined by judgment in 2012; what remained was execution or incidental proceedings, so abatement under Order 24 did not defeat the application

Reasoning

The court reasoned that upon the 2012 judgment the suit ceased to exist as a pending suit; only execution or incidental proceedings remained. The application concerned the applicant's right of appeal against the judgment against his deceased father, not the suit itself, so it could be legally prosecuted by the proposed applicant.

p. 6
03

Whether the applicant has locus standi

Holding

Yes, by virtue of the grant of letters of administration ad litem

Reasoning

Although the judge entertained doubt as to whether the suit property could be described as the estate of the deceased given the judgment against the original applicant, the grant of letters of administration ad litem sufficed to confer locus standi to file the application.

p. 6
04

Whether the law firm is improperly on record

Holding

Not a proper ground for a preliminary objection; a mixed issue of law and fact, and the law recognizes post-judgment change of advocates

Reasoning

The court took cognizance of developments recognizing the right of parties to be represented by advocates of their choice post-judgment. Further, whether the firm was properly on record required evidence unless expressly admitted, and was therefore not a pure point of law.

p. 6

Legal principles established

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  • A preliminary objection cannot be raised on matters requiring ascertainment of facts or probing of evidence; it must raise pure points of law
  • Issues of res judicata, abatement and representation on record may be mixed questions of law and fact not suitable for determination on a preliminary objection
  • A party may be represented post-judgment by an advocate of their own choice

Court orders

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  1. 1.The preliminary objection taken up by the interested party is dismissed
  2. 2.Costs of the preliminary objection awarded to the ex parte applicant

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 7, 63(e), 79G
  • Civil Procedure RulesOrder 24 (including 24(7)), Order 50 Rule 1
  • Constitution of KenyaArticle 159

Cases cited (5)

  • Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
  • Allied Workers Union Kenya vs Kenya Airways Limited & 3 Others
    [2015] eKLR
  • Henderson vs Henderson
    (1843) 67 ER 313
  • Outeniqua Skydivers CC vs Stephanus Petrus Hartzner & Another
    Case No H264/2019
  • Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others
    [2017] eKLR
Jurisdiction invoked
Sections 1A, 1B, 63(e), 79G of the Civil Procedure Act; Order 50 Rule 1 of the Civil Procedure Rules and Article 159 of the Constitution of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Minister for Lands and Housing & another; Kibor (Interested Party); Koilege (Ex parte Applicant) (Miscellaneous Civil Application E005 of 2025) [2026] KEELC 1105 (KLR)", Case Analysis (2026). Eldoret High Court Misc Application No. 295 of 2005 (Notice of Motion dated 28th June 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1105/eng@2026-02-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.